England and Wales Court of Appeal (Criminal Division) Decisions

		Neutral Citation Number: [2002] EWCA Crim 1326
		Case No: 2000/5595/Y4 2001/2606/Y4 2000/5664/Y4

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM ISLEWORTH CROWN COURT
(Her Honour Judge Dangor)

		Royal Courts of Justice Strand, London, WC2A 2LL
		31st May, 2002

B e f o r e :

LORD JUSTICE POTTER
MRS. JUSTICE RAFFERTY
and
MR. JUSTICE HEDLEY
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Between:


	Jhalmal Dhillon Menohar Singh Jagdev	Appellants
	- and -
	The Queen	Respondent

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(Transcript of the Handed Down Judgment of
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Nicholas Fooks (instructed by Wilson Houlder) for Jhalmal Dhillon the 1st Appellant
Tristan Chaize (instructed by Menon & Co) for Menohar Singh Jagdev the 2nd Appellant
Christopher Foulkes for the Crown
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HTML VERSION OF JUDGMENT
AS APPROVED BY THE COURT
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Mr Justice Hedley :

1. In this case the appellant Menohar Jagdev (“Jagdev”) appeals with the leave of the single judge against a Confiscation Order in the sum of £56,168.03 made on 9^th April 2001 by Her Honour Judge Dangor at Isleworth Crown Court following his conviction on 14^th July 2000 of a conspiracy to supply Class A drugs, for which, on 1^st September, 2000 he was sentenced to 11 years imprisonment. The Confiscation Order was made payable forthwith, with 2 years imprisonment consecutive in default. On the 29^th June 2000 Jhalmal Dhillon, Jagdev’s co-defendant had pleaded guilty to being concerned in the supply of heroin and on 1^st September 2000 he too was sentenced to 11 years imprisonment. Both seek leave to appeal against these sentences of imprisonment. At the hearing of Jagdev’s appeal on 23^rd May 2002, the Court reserved judgment, at the same time refusing the applications in respect of sentence and indicating that the reasons for such refusal would be incorporated into the reserved judgment.
2. The police had been keeping observation on both men. On 6^th January 2000 each met whilst in his own vehicle. A transaction was performed. They were arrested. Jagdev had £10,000 in cash on him. Heroin was seized, 0.871kilo at 100% purity. A search of the shoe shop from which Jagdev had come revealed a further 0.405kilo of heroin at 100% purity and 0.204kilo of opium. At the trial Dhillon pleaded guilty to the count relating to the larger amount of heroin and offered to give evidence. Jagdev alleged duress at trial but this was rejected by the jury. Jagdev was a man of good character whereas Dhillon was no stranger to crime; in particular in 1997 he had received a sentence of 4 years imprisonment for possessing heroin with intent to supply. He was in breach of his licence but the judge made no order on that. We should add that Jagdev has received favourable prison reports which we have seen.
3. The case raised particular problems on sentence. Dhillon’s written basis of plea named Jagdev. Neither Dhillon nor, of course, his counsel were present during the trial. The sentencing judge however heard a trial conducted on a basis quite inconsistent with Dhillon’s plea. She did not recognise that the jury might have found that some duress operated on Jagdev. Nevertheless; that meant difficulties for Dhillon and the judge when it came to sentence. Her Honour Judge Dangor, in sentencing the Defendants, expressed the view that they were ‘jockeying for position’. By that we consider that she meant no more than that their accounts were mutually contradictive. In our view it was right for the judge to proceed as she did; hearing further evidence from Dhillon, even if he had wanted to give it was unlikely to make the position clearer.
4. In our view the judge was also entitled to take the starting point for sentence which she must have chosen. She discounted it a little, no doubt for Jagdev’s good character (though so many large scale drugs offenders are of good character). She discounted the sentence too for Dhillon’s plea and his willingness to give information. However, he had a highly relevant previous conviction. She could have (but did not) order Dhillon to serve the unexpired balance of his sentence for that conviction. The learned judge was thus entitled to come to the conclusion that each deserved the same sentence albeit for rather different reasons. The sentence was high, certainly, but it was not obviously wrong in principle; nor do we feel able to describe it as manifestly excessive. For these reasons we refused both applications for leave to appeal.
5. We turn to the more difficult question of the Confiscation Order. So as to understand the submissions of both parties, it is essential first to set out the relevant legislative provision. That is Section 3(1)-(4) of the Drug Trafficking Act 1994 which provides as follows:

(1) Where the Crown Court is acting under section 2 of this act but considers that it requires further information before-

(a) determining whether the defendant has benefited from drug trafficking, or

(b) determining the amount to be recovered in his case by virtue of that section,

it may, for the purpose of enabling that information to be obtained, postpone making the determination for such period as it may specify.

(2) More than one postponement may be made under subsection (1) above in relation to the same case.

(3) Unless it is satisfied that there are exceptional circumstances, the court shall not specify a period under subsection (1) above which-

(a) by itself, or

(b) where there have been one or more previous postponements under subsection (1) above or (4) below, when taken together with the earlier specified period or periods,

exceeds six months beginning with the date of conviction.

(4) Where the Defendant appeals against his conviction, the court may, on that account –

(a) postpone making any of the determinations mentioned in subsection (1) above for such period as it may specify: or

(b) where it has already exercised its powers under this section to postpone, extend the specified period.

6. We now set out the sequence of events which led to the making of the order on 9^th April 2001. At the date of sentence the judge, requiring further information, postponed the hearing under Section 3(1) until 20^th October 2000. On that date it was further postponed (so that both cases could be heard together) until 11^th December. That was within 6 months of both Jagdev’s and Dhillon’s conviction. In fact the case came into the list before Judge Dangor for Directions on 1^st December. Dhillon was not ready but the Prosecution and Jagdev were. They wished to retain the date of 11^th December. There was, however, another matter which concerned the judge. The point had been raised that the assumptions and reverse burden of proof provided for in the Drug Trafficking Act might not be compliant with article 6 of the ECHR. Decisions in both the Privy Council (Mackintosh) and the Court of Appeal (Benjafield) were awaited, which were expected to deal with the arguments raised. The judge was most reluctant to proceed with those decisions outstanding; it was also the case that it was only the appellant who might benefit from the delay. Jagdev and the Prosecution sought to persuade the judge not to take the case out of the list and the Prosecution pointed out the need to the judge under Section 3(3) to be satisfied that there were ‘exceptional circumstances’ because the 6 month time period would have expired in the meantime. The judge’s response is to be found at p.10E-F of the transcript:

“Well may I make it plain, gentlemen, that I am not prepared to tackle the law without having the Court of Appeal’s decision on it, because I think it is so fundamental .... I find that to be an exceptional circumstance and I do not want to be jeopardising anybody’s finances by applying law which is still very much in question so I am not prepared to, I am not prepared to hear those on the 11^th December but I would want it to come back as soon after as I can.”

7. She then adjourned the case to 5^th March 2001. After a further attempt by Dhillon to break the fixture and an abortive hearing before Judge MacDowell, Jagdev’s case was heard on 13^th March with judgment being given on 9^th April 2001. Dhillon’s case has still not been heard.
8. The case for Jagdev is quite simple. It focuses as it must on the hearing of 1^st December 2000. It is argued that the judge neither required further information under Section 3(1) nor were there exceptional circumstances under Section 3(3). If, contends Mr Chaize on behalf of Jagdev, either of those contentions is well founded, then the judge had no power to postpone the hearing beyond the date 6 months after the Appellant’s conviction and thus no power either to conduct the hearing of 13^th March or make the order of 9^th April. Mr Foulkes (who did not appear below on 1^st December 2000 or 9^th April 2001) for the Respondent contends either that the judge did need further information and that there were exceptional circumstances or that the judge was not using the statutory power of postponement at all but was exercising the inherent power of the court to control its own proceedings by ordering an adjournment.
9. In one sense all the debate is academic. The reason is that, after his conviction, Jagdev sought leave to appeal against conviction, an application he did not abandon until after the making of the Confiscation Order. In those circumstances the court had the independent power of postponement under section 3(4) in any event. However, no-one involved appreciated that Jagdev had sought permission to appeal or the relevance of that fact to the postponement. In fairness, we therefore should deal with the case as it was presented to the judge.
10. A number of authorities bearing on this point have been cited to us. The most important being as follows:

R –v Cole (unrep) 22^nd April, 1998

R –v- Shevki and Steele [2001] 1 Cr App R(S) 40

R –v- Gadsby [2001] EWCA Crim 1824

R –v- Chuni [2002] EWCA Crim 453

R –v- Zelzele [2002] 1 Cr App R(S) 62

11. These cases each contain a review of the authorities and acknowledge the contributions of Dr David Thomas QC to the debate. Nothing useful will be served by yet another review. It is enough perhaps to say that the following principles can be discerned:

a) The confiscation hearing should take place within 6 months of conviction unless there are exceptional circumstances;

b) Once the hearing has been validly postponed past the 6 months period the statutory conditions no longer apply and the case is governed by the court’s inherent power to adjourn;

c) The valid postponement must be made before the expiration of the 6 months period;

d) A postponement beyond 6 months may be justified where exceptional circumstances exist in fact, even if they have not been specifically adverted to;

e) The test for exceptional circumstances is: “whether the judge was entitled to conclude that the circumstances here were exceptional.” i.e. this is “akin to the exercise of a discretion” and so “the judge must be allowed what is sometimes called a margin of appreciation.” (See R-v-Cole and also R-v-Gadsby at para 25)

12. What the authorities, however, do not determine is (a) whether the need for extra information must exist at the time of the postponement beyond six months and (b) the actual relationship between the statutory power to postpone and the inherent power to adjourn.
13. That potential problem may be seen starkly in the following example. A judge who has had conduct of the proceedings throughout validly postpones from the sentence hearing to a date within the 6 months hearing because further information is needed. On the day of the hearing all parties are ready but the judge has been taken ill. No-one can hear the case until after the 6-month limit. Clearly there are exceptional circumstances; equally clearly, on any reasonable construction of the words, no further information is required. It is strongly arguable on the statutory wording that the power under Section 3(3) is linked to Section 3(1) (the information requirement) and is not exercisable independently of it. It may well be that the answer is that the statutory power is complementary to the inherent power and not an alternative to it; that therefore the inherent power can be used to adjourn but that, in such circumstances, it would not be a proper exercise of judicial discretion to adjourn beyond the 6 month period unless there were exceptional circumstances thus honouring the statutory safeguard for a defendant. However, we do not think it is necessary so to decide for the purposes of this appeal in the light of our conclusion upon the question whether Judge Dangor correctly exercised her statutory powers to postpone on 1^st December 2000.
14. Mr Foulkes puts his submissions on the authorities in two ways: first, he says the words “further information” should be accorded a wide and purposive construction, the purpose being that the judge should be armed with such information as is necessary fairly to decide the issue between the parties; second he argues, on the basis of Cole, that provided that the power to postpone has been used once for further information then it can be used again to postpone beyond the six months solely on the basis of exceptional circumstances. The potential difficulty with the second approach is, as we have observed, the statutory wording that ties Section 3(3) to Section 3(1). Certainly, however, the cases reveal a wide interpretation being given to “further information”.
15. Here, the judge stated that she wanted further information, namely that which would be supplied by the judgments and opinions in Benjafield and Mackintosh. She said that the potential impact of those judgments, given their imminence (and, indeed, eminence) amounted to exceptional circumstances. Mr Chaize criticises that approach on three grounds. First, he argues that ‘further information’ is restricted to things financial and does not extend to include things legal. Secondly he contends that, in principle, the law of England is never uncertain and the court must apply the law as it then finds it to be. Thirdly, he suggests that in any event a potential development in legal thinking could never amount to exceptional circumstances.
16. We have given close and anxious attention to this point acknowledging that there is logical force in both sets of submissions. In the end we have no doubt in concluding that Judge Dangor was entitled to hold in these circumstances that there were exceptional circumstances. Only the appellant could benefit from a postponement, the postponement was only expected to be for a short period and there was a real prospect that, if the judge proceeded to hear the case before the awaited decisions were available, the hearing might be wasted and an unjust order made. Since that was a reasonable prospect at the time we consider that the judge was entitled to reach the conclusion which she did. That is because she was entitled to regard the content of the expected judgments as ‘further information’ which she would require. So to hold is to give the words a wide meaning but it is one which they are well able to bear, because in our view the purpose of the provision is to enable the judge to postpone the hearing in circumstances where he/she regards it as desirable in order to be able to reach a fair conclusion on the confiscation issue. That was plainly the mattter which required the judge to know whether, and to what extent, the procedures and presumptions as previously applied under the legislation required modification in the light of the Convention arguments.
17. In those circumstances, we conclude that the judge validly exercised her power to postpone under Section 3 of the Act beyond the six month period. It follows accordingly that she was entitled to make the order which she did on 9^th April 2001 and no complaint is made about the amount.
18. Complaint is, however, made of two matters which we need to consider. First, it is said that payment should not have been ordered to be made forthwith. Secondly, it is said that the sentence of 2 years in default of payment was too long.
19. We do not consider there is any substance in the first complaint. Jagdev’s counsel agreed with payment forthwith and for good reason. Jagdev’s assets comprised principally cash and his interest in the family home which was in the sole name of the wife where she lives with their minor children. Clearly there would be serious difficulties in the way of realising his interest. A ‘forthwith’ order was required to enable the High Court to appoint a receiver so that the property would no longer be under Jagdev’s control. As and when it could be realised, it would be. However, until that time he was not in culpable default and if his interest, once realised, fell short of £40,000 he could apply to have the figure altered. If it realised more than £40,000 then subject to the accruing of interest and, presumably also, to the receiver’s charges, he would receive the balance. There was no date that could be set realistically within which he could be expected to pay the sum. The price of such a method of protection for the defendant from being in culpable default is the accrual of interest on the £40,000 at judgment rate (8%). We cannot see in the circumstances how or why he should be relieved from it. The order for payment forthwith was and remains correct.
20. We have, however, concluded that the length of the sentence imposed in default of payment was wrong. It appears from the transcript that the judge and counsel believed that 2 years was the specified period. It was in fact the maximum term; there is no minimum term provided, albeit the maximum term for any order up to £50,000 is 18 months. At £56,168.03 this sum fell into the range between £50,000 and £100,000, for which the maximum default term was 2 years. We have been referred to the case of Clarke & Bentham [1997] 2 Crim App R(S) 99. There it is made clear that an exercise of judicial discretion is required. The judge should have asked herself: what period of imprisonment not exceeding the statutory maximum was necessary to coerce the defendant into realising and paying the sum due under the confiscation order? She did not appear to do so and so we have asked it of ourselves. Our answer in the context of this case is a term of 18 months imprisonment consecutive to the sentence of 11 years. To that limited extent this appeal succeeds.